Second Appeal has been filed against the judgment and decree dated 11.09.2006 made in A.S.No.97 of 2006 on the file of the learned VII Additional District Judge, City Civil Court, Chennai, reversing the judgment and decree passed by the learned XVII Assistant Judge, City Civil Court, Chennai, dated 11.01.2005 passed in O.S.No.5630 of 2000.

2. It is the case of the plaintiff before the trial court that the defendant borrowed a sum of Rs.45,000/- from the plaintiff by executing a promissory note dated 27.11.1997, at Chennai, in favour of the plaintiff promising to repay the amount with interest at 24% per annum on demand. Despite repeated demands and legal notice dated 23.03.2000 issued by the plaintiff, the defendant failed and neglected to repay the principal and interest amount. Hence, the suit for recovery of a sum of Rs.74,190/- with interest at 24% per annum on Rs.45,000/- from the date of the suit till realisation.

3. The defendant filed written statement denying the execution of promissory note by him and his liability to repay the amount, issuance of legal notice by the plaintiff etc. The defendant submitted that he is working as clerk in Indian Overseas Bank and earning nearly Rs.15,000/- per month. He further submitted that the construction business run by his wife was ruined long back and there is no such business and the defendant was in no way connected with the erstwhile construction business of his wife. He further denied that the suit is filed within the period of limitation and that the defendant is not entitled to any benefit under the Debt Relief Act. There is no cause of action for this suit. The suit is to be dismissed with costs.

4. Before the trial Court, the plaintiff was examined as P.W.1 and one Manonmani, the Handwriting Expert, was examined as P.W.2 and documents Exs.A1 to A7 were marked. On the side of defendant, the defendant himself was examined as D.W.1 and no document has been marked. On consideration of the materials available on record, the trial Court found that the suit promissory note was executed in two different inks and hence, the genuineness of the same could not be considered with and thus, dismissed the suit. Aggrieved over the same, the plaintiff filed an appeal before the first appellate Court in A.S.No.97 of 2006, wherein the first Appellate Court found that the signatures found in the promissory note as well as other documentary evidences are one and the same and thus, decided the case in favour of the plaintiff and accordingly, decreed the suit in favour of the plaintiff. Aggrieved defendant has filed the present Second Appeal.

5. The second appeal was admitted on the following substantial question of law:-

"Whether Ex.A1 promissory note is invalid in law due to material alteration?".

6. Heard the learned counsel for the appellant and perused the materials available on record. There is no representation on behalf of the respondent for several hearings. Hence, this Court is constrained to dispose of the appeal, on the basis of the arguments advanced by the learned counsel for the appellant and the materials available on record.

7. The learned counsel for the appellant submitted that the execution of suit promissory note was specifically denied by the appellant in his written statement and evidence before the trial court, but the first appellate Court did not properly consider the factum of execution of the alleged promissory note, wherein two different inks were used. The learned counsel further submitted that in the absence of not producing any evidence to prove the passing of consideration, the first appellate Court ought to have drawn adverse inference that the promissory note was not executed in favour of the plaintiff. In support of his contention, the learned counsel has relied on the following judgments reported in

(i) AIR 1961 SC 1316 (Kundan Lal Rallaram V. Custodian, Evacuee Property)

(ii) AIR 1986 Andhrapradesh 120 (Janyantilal Goel V. Smt. Zubeda Khanum).

8. Perusal of